Lay Participation in Trials is Treated Like Child's Play

The Judicial Yuan is currently holding the "International Conference on Lay Participation in Criminal Trials," during which it announced a change in banner for "lay observer participation," a system heavily funded for propaganda and simulations, rebranding it as "lay adjudicator participation." However, it simultaneously emphasized that the "Provisional Act on Lay Observer Participation" submitted to the Legislative Yuan for deliberation merely changes the legal name from "observer" to "adjudicator," leaving the provisions, institutional framework, and even the regulatory text completely unchanged. Lay observer participation "favors officials over the people, resembles a trial without a verdict," whereas lay adjudicator participation ensures "every vote carries equal weight, a true trial and a genuine verdict." The Judicial Yuan should take this opportunity to ask experts from countries like the United States and Japan whether they have ever heard of such sophistry and legislative trickery used in judicial reform to swap a substitute for the real thing.

The "Provisional Act on Lay Observer Participation" stipulates that major cases carrying a minimum statutory penalty of seven years or more of imprisonment will have five lay participants randomly selected from the general public to serve as "observers," participating in the trial alongside three professional judges. However, during the deliberation process, the lay observers only "express opinions" on the existence of criminal liability and the severity of the penalty. If a majority of the judges insist on their own views and formulate different reasoning, they can still issue a dissenting judgment. In other words, in future high-profile political cases such as that of Ch'en Shui-bian, five participating citizens and one judge could share a common conclusion, but as long as two professional judges feel differently and are "pleased with themselves," there would be a scenario of "6 < 2," violating the basic common sense of majority rule in a democratic society's collective decision-making system.

Full of Short-Term Calculations and Strategy

Meanwhile, in contrast to the reforms introduced by Japan and South Korea in recent years to adopt lay participation systems—where the legal amendments went beyond merely enacting a single statute like our "Observer Act" that only superficially emphasizes "sitting high on the bench" for lay participation—those countries revitalized trial ancillaries by proposing multiple bills to drastically amend "criminal procedures," enabling laypersons to "see and hear" and "instantly understand" the trial process. After all, the current rules for criminal investigation, prosecution, and trial procedures are tailored for legal professionals such as judges, prosecutors, defense attorneys, and judicial police officers, without taking into account that ordinary citizens participating in trials have "no" legal knowledge, "no" litigation experience, "no" professional training, and "no" adequate time.

In other words, the social mobilization of ordinary citizens as lay participants requires people to set aside their original jobs and housework, using limited time, personal experiences, and viewpoints to offer opinions. Through the integration, coordination, and compromise of diverse values and stances, they determine fairness and justice for Taiwanese society under specific time and space contexts. Referring to the implementation experience of lay participation in neighboring Japan, the trial schedule for cases like that of Ch'en Shui-bian should take only three to four days to conclude without dragging on for a year and a half. The trial process should rely on oral expression and concise explanations rather than exhausting oneself over mountainous case files and documentary evidence. At the same time, the justification of judgments should not be dominated by professional judges splitting hairs and acting arbitrarily based on "substantial influence" or "statutory authority doctrines"; rather, it should respect the majority opinion of participating citizens to jointly decide whether a public official's acceptance of gifts exceeds common sense and social norms, thereby betraying the public trust.

Yet, the "provisional" "act" of lay observer participation also reveals that government policy statements and changes are full of short-term operations and political calculations. This is because elevating judicial democracy through public participation in trials in Taiwanese society is an epoch-making undertaking unprecedented in the Chinese-speaking world. However, the legislative convention of using the term "provisional act" implies temporary regulations applicable to specific circumstances and times. Furthermore, "judicial adjudication is the last line of defense for social justice"; how can it tolerate trial and error or practiced "provisional" runs? Just imagine, how can cases involving whether a defendant faces lifelong imprisonment and bodily health, like that of Ch'en Shui-bian, be treated like child's play?

Without Complementary Amendments, the Bill Should Be Returned

"If names are not correct, language will not be in accordance with the truth; if language is not in accordance with the truth, affairs cannot be carried on," and "A gentleman is simply cautious about his words." In other words, if the title is improper and the explanation is incoherent, things cannot be accomplished. More importantly, a gentleman should not be sloppy or casual with his words. Unlike Europe and the United States, which have centuries of history with jury and lay adjudicator systems, Taiwan's unique promotion of "observer participation" should have been handled prudently. Now that the Judicial Yuan has announced that "lay observer participation" will be changed to "lay adjudicator participation," if there are major changes to the system's substance without proposing complementary amendments to criminal procedures, the Legislative Yuan should refuse to endorse it and return this undemocratic "provisional act."